The recent General Convention passed two resolutions calling for fundamental review of the new Title IV. Resolution C116 called for a review of the “Constitutionality of Certain Provisions of Title IV,” including:

the constitutionality of the power granted therein to the Presiding Bishop to restrict the ministry of a Diocesan Bishop [and] the constitutionality of the creation of a charging and trial system applicable to Presbyters and Deacons in violation of Article IX of the Constitution which provides that Presbyters and Deacons shall be tried by a Court instituted by the Convention of the Diocese.

The Convention also passed a second resolution, C049, calling for review of Title IV. The official Explanation attached to this resolution stated:

It has been noted by a number of experts on Canon Law throughout The Episcopal Church that there are several clauses within the latest revision of Title IV which appear to be in violation of the provisions of the Constitution of The Episcopal Church.

The House of Bishops of The Episcopal Church met in March 2011 and discussed the uses and applications of the new Title IV. They also acknowledged that there were many questions and concerns over the changes and their possible conflict with the Constitution of the Episcopal Church.

Yesterday ENS published an article summarizing these resolutions, the background to Title IV and the criticisms that have been directed at the new canon.

ACI, working with Alan Runyan of the Diocese of South Carolina, has long been among the critics of Title IV. We have published several papers on this subject and were among those interviewed in early 2011 as part of the investigation conducted by the House of Bishops that was cited in these resolutions. In light of General Convention’s decision to undertake this review and ENS’s background article, we thought it would be helpful to summarize our concerns and point interested readers to where we have discussed these issues in detail.

Our concerns fall into three categories:

The revisions purport to give unconstitutional metropolitical authority to the Presiding Bishop, giving that office precisely the same authority over other bishops that diocesan bishops have over their clergy. Not only is there no constitutional basis for this unprecedented step, this approach is fundamentally incompatible with the ordination vows of the different orders of clergy: priests and deacons pledge obedience to their diocesan bishops, but bishops’ vows contain no such promise of obedience to any other office or body. The new Title IV thus subverts both the Constitution and the Ordinal in the Book of Common Prayer and re-defines the episcopal office. We discuss this issue in our pieces “Title IV Revisions Unmasked” and “Title IV Unmasked: Reply to Our Critics” (see below).

The revisions infringe on the exclusive constitutional authority given to dioceses for the trial of priests and deacons. Few things are as clear in TEC’s history as the fact that the Constitution allocates to the dioceses the authority for disciplining diocesan clergy. That clarity derives in no small measure from the fact that almost from its inception, TEC has had a vocal contingent of canonical experts who disagreed with this constitutional allocation of authority and who made sustained efforts to change it. All of these efforts were unsuccessful, and their repeated failure only serves to underscore that the constitutional authority for clergy discipline very intentionally rests with the dioceses. To those readers skeptical of this conclusion: please read the article linked below, “Title IV and the Constitution”; the conclusion is irrefutable.

The revisions deny accused clergy due process protections widely seen as essential to fair trials. The definitions of offenses, the procedures for initiating and conducting proceedings and the standards for interim disciplinary measures are vague and overbroad and have already led to numerous and frivolous proceedings, inexplicable inconsistencies and arbitrary applications of discipline. Unlike professional disciplinary matters in other professions in which egregious lapses in due process can be remedied by judicial review, church discipline cases will not be reviewed by the courts due to First Amendment constraints. The only due process accused clergy will get is that specified in the church disciplinary code. Our concerns over due process are detailed in our paper “Title IV Revisions Unmasked.”

As ENS notes, the defenders of Title IV claimed their February 2011 response to our original critique “conclusively establishes the constitutionality” of Title IV. General Convention must have reached a different conclusion. In any event, we invite all concerned about Title IV to read our replies to their defense of Title IV before accepting the characterization that its constitutionality has been established: “Title IV Unmasked: Reply to Our Critics” (February 2011) and “Title IV and the Constitution” (March 2011). The latter in particular is a comprehensive review of the constitutional provisions for clergy discipline from 1789 to the present. Our own conviction after undertaking this work: “The conclusion that the 2009 Title IV revision is unconstitutional cannot reasonably be denied.” Our critics never answered these papers.